Moral Theology Part 84

(b) A particular exemption from capital punishment is lawful, when there are good reasons recognized by law for commutation or clemency.

This has been the practice of governments throughout history, and is justified when it furthers the common welfare, or at least shows mercy to a deserving individual without harm to society. But a judge has to condemn when the law and the facts call for condemnation, and the authority in whom the pardoning power is vested has to use his power prudently, lest he encourage lawlessness.

1822. It is not morally lawful to put criminals to death unless the following conditions are present:

(a) the crime must be external and of such a character that the public welfare requires the supreme punishment, either on account of the enormity of the act (e.g., murder), or on account of its danger (e.g., sleeping at one's post in time of war). Further, the crime must be certain and sufficiently established, for, since the punishment should fit the offense and the law presumes innocence until guilt is proved, no one should be sentenced to death except for a serious and certain crime. The Fifth Amendment to the American Const.i.tution declares that no person shall be deprived of life, liberty or property without due process of law;

(b) the sentence of death and its execution should be performed by those who have public authority for these acts and in the manner required by law. For capital punishment is a means of self-defense used by society, and its use pertains there fore to the representatives of society. Moreover, if private individuals exercised this function, accused persons would not receive the consideration of their rights or the opportunity of defense due them, and the public peace would be overthrown by murders of revenge committed in the name of justice.

(c) the penalty should be carried out in a humane and Christian manner, as is manifest. The convicted man should be allowed time and opportunity to make his peace with G.o.d and, if possible, to say farewell to relatives. Slow and agonizing forms of killing are of course entirely wrong, no matter how wicked the criminal who is being executed. The American law and other laws do not permit a pregnant woman to be executed until she has delivered her child.

1823. Unlawful Killing of Offenders.--The killing of offenders is, therefore, unlawful in the following cases:

(a) when the offense is not serious or fully deliberate (e.g., involuntary manslaughter), or when it has not been sufficiently established (e.g., if it is not certain that the supposed victim of murder is dead or that he died from a homicidal act). In civilized countries today the law inflicts capital punishment only for the most serious crimes, and the State has to prove its case beyond reasonable doubt before the punishment can be decreed. But in the past death was often the penalty for horse- or sheep- stealing, or even smaller offenses, and in times of excitement men have sometimes been sentenced to death without a fair trial;

(b) when the sentence of death is not p.r.o.nounced or executed legally.

Those who lynch the perpetrators of heinous crimes are often in good faith, especially if the processes of the law are too slow or uncertain, but since they act without authority, their deed is really murder. The same is true of a husband who kills his wife taken in adultery, of the relative of a seduced girl who kills the seducer, of an officer of the law who unnecessarily or without authorization kills a man sentenced to death when the latter is trying to escape. The State has the right, though, to declare a notorious malefactor outlawed, and thus to give to private citizens the right to take him dead or alive, or to kill him on sight; but it is clear that the exercise of this right is a dangerous remedy and one to be used sparingly;

(c) when the mode of killing or the circ.u.mstances are repugnant to Christian feeling. Today capital punishment is generally inflicted in a humane manner, but history records many cruel forms of execution, as when men were hanged, drawn and quartered, or burned at the stake, or put to death amid the jeers and curses of the populace.

1824. Is Tyrannicide Lawful?--(a) If the ruler is a tyrant in act (that is, one who has a lawful t.i.tle to rule but who abuses his authority), it is not lawful to kill him on account of his misdeeds or crimes, since the subject has not the authority to act in the name of the nation (Rom., xiii. 1 sqq.; I Peter, ii. 18). In case of self-defense, however, as when the tyrant unjustly makes a personal attempt on the life of a citizen, the latter has the right to kill. The Council of Constance condemned the doctrine of Wycliff that every subject has the right to a.s.sa.s.sinate a tyrannical prince, a doctrine that would make the position of every ruler unsafe, since there are always persons who think they are victims of persecution. The nation, however, has the right to depose or even to execute a wicked ruler, for government is given to rulers for the benefit, not for the destruction, of the common good.

(b) If the ruler is a tyrant in t.i.tle (that is, a usurper), it is not lawful to kill him, when he has already obtained peaceful possession; for here again it cannot be said that the killer would have the authorization of the nation. If, however, the tyrant has not obtained possession but is struggling for it, his status will not be that of ruler but of public enemy, and it will he lawful to kill him as an act of war, provided the conditions of a just war are present (see 1384).

1825. Judges and Executioners in Canon Law.--According to the law of the Church (Canon 984, nn. 6, 7), those who pa.s.s the death sentence as judges and the executioners and their immediate and voluntary helpers become irregular (i.e., incapable of lawfully receiving Orders or of exercising their powers). The reasons for this ancient discipline are chiefly two:

(a) clerics are the ministers of Christ, and therefore they should be like their High Priest, whose sacrifice they offer at the altar. Now Christ "when He was reviled, did not revile, when He suffered, He threatened not, but delivered Himself to him that judged Him unjustly"

(I Peter, ii. 23). Hence, it is unbecoming that clerics should condemn to death or kill their fellow-men, even criminals;

(b) clerics are the ministers of the New Testament, and therefore they should conform themselves to its spirit of mildness. The divine law itself declares that a bishop should not have private quarrels or inflict blows (I Tim., iii. 3), but the church law goes further and declares that a cleric should not even act as public judge or executioner in capital cases. The Old Testament inflicted corporal punishments and death, and hence we read that its priests and levites put sinners to death with their own hands (Exod., x.x.xii. 28; Num., xxv.

7, 8; I Kings, xv. 33; III Kings, xviii. 40; I Mach., ii. 24), but the law of Christ contains no sentences of death or of bodily chastis.e.m.e.nt.

1826. The Right of Self-Defense.--The second case of lawful homicide mentioned above (1819) is the killing of an unjust aggressor, not intended by the slayer, but consequent on his defense of his life against the aggressor. This right of self-defense is granted by natural law itself, and has been denied by but few moralists.

(a) Thus, nature inclines man to prefer his own life to that of another, other things being equal, and therefore it authorizes him to defend his life even at the cost of an aggressor's life. Even the brute animals are armed by nature to defend themselves against attack.

(b) The natural law also permits one to perform an act from which two effects will follow, one good and the other bad, provided the good effect alone is intended and there is a sufficient reason for permitting the evil effect (see 104). In the present case the killing of the aggressor is an evil, while the protection of the innocent party is a good; but it is only the protection that is intended, and the killing is not an extreme measure in view of the greatness of the good that is at stake.

1827. The right of self-defense is also sanctioned by human laws. (a) Thus, church law recognizes this right in the words of Innocent III: "All laws permit one to repel force by force, but the defense must not be immoderate, nor exercised from desire of revenge." According to the Code (Canon 985, n. 4) irregularity arises from voluntary homicide, but this does not include the case of lawful self-defense, although a provisional dispensation must be asked for. A cleric has the right of self-defense, as well as a layman. (b) Civil law also has always admitted the right of a person a.s.sailed by another to defend himself, even by killing the a.s.sailant, if there is no other alternative.

1828. Conditions for the Exercise of This Right.--(a) The a.s.sault must be a true aggression (i.e., an act of violence threatening the life of the person a.s.saulted) and unjust (i.e., an attack made without public authority); (b) the resistance must be true self-defense (i.e., an act used to ward off attack or to make the a.s.sailant powerless) and moderate (i.e., the person attacked must not use more force than necessary and he must not intend to kill the a.s.sailant).

1829. The person who is killed must be a true aggressor, for otherwise the slayer is himself the aggressor and guilty of unjustifiable homicide. Killing is therefore unjust in the following cases:

(a) when the opponent is not using true violence, as when he merely prays and hopes that you may die or be killed;

(b) when he is not using actual violence, as when he is disarmed or helpless, or when he has only threatened to kill you in the future, or to bring you to the gallows by his testimony or vote.

1830. Must one wait, then, until the aggressor has actually attacked, before using self-defense? (a) One need not wait until physical aggression has started (e.g., until the adversary has fired a shot or struck a blow); otherwise self-defense would very often be futile. (b) One should wait until moral aggression has been shown before proceeding to defense; that is, the other party must perform some external act which according to the judgment of a prudent person at the time and place is one with the act of physical aggression, as when an angry man reaches for a gun or knife, or a desperado advances in a threatening manner.

1831. The aggression must also be unjust or contrary to the right of the person attacked. (a) Thus, if the aggression is just, it is not lawful to kill the aggressor. Hence, it is not lawful to kill an officer of the law who is making an arrest, or guarding a prisoner, or leading him to execution. (b) If the aggression is not just, self-defense is lawful. It makes no difference whether the aggression is formally unjust (e.g., when the aggressor attacks you because he wishes to wreak revenge, or because he fears you), or only materially unjust (e.g., when you are a stranger to the aggressor, but he is drunk, or a dope fiend, or a maniac). Similarly, a son may defend himself against his parent, a subject against his superior, a layman against a cleric, an adulterer against the injured husband, a calumniator against the person calumniated; for authority or personal injury suffered does not give these persons the right to inflict by private authority the punishment of death.

1832. Self-defense must be merely a protection of self against future evil and not a punishment of the aggressor for past attacks, for capital punishment belongs to society, not to private persons. Hence, if an aggressor has taken to flight, or has been disarmed, or knocked senseless, or has begged for mercy, it is not permissible to kill him.

1833. Self-defense must be moderate, for injury or the death of a human being is a thing that should be avoided when possible. (a) Thus, the person attacked must not reply with force at all, if this is possible.

He should escape, or call a policeman, or throw the weapon out of the window, etc., if these means will suffice. Some authors excuse from flight those who would suffer disgrace if they ran away from danger, such as those who are pugilists or professional fighting men. (b) The person attacked should use only such force as is necessary, if force must be employed. Thus, if the aggressor can be made helpless by the use of gas, permanent bodily harm should not be done him; if he can be subdued with the fists, knife or pistol wounds should not be resorted to; if wounds will suffice to hold him at bay (e.g., by blackjacking), killing should not be resorted to. In the heat of a fight, however, the person a.s.sailed sometimes unintentionally goes beyond what moderation requires.

1834. The intention of the person who uses force to repel an unjust aggressor must be good. (a) Thus, as his end he must intend only the preservation of his own life and look upon the death of his neighbor as a misfortune. (b) As the means to this end he must intend only to stop the attack that is being made, not to bring on the death of the aggrcssor. Those who are commissioned by public authority to put a human being to death (e.g., the public executioner or soldiers in time of war) may intend these homicides, since they are means to the common good; but the death of one private person is not a means to the good of another private person, and hence it should not be directly aimed at.

1835. The mind of the person who defends himself against the unjust aggressor must also be free from sinful dispositions, such as hatred and revenge; otherwise he sins against charity. Our Lord reprobated the teaching of the Scribes that it is lawful to return injury for injury in a revengeful spirit, and declared that one should prefer to receive a second blow rather than return a blow for the sake of revenge (Matt., v. 38 sqq.; cfr. also Rom., xii. 19).

1836. When Self-Defense Is Obligatory.--Self-defense is sometimes an obligation. (a) Thus, it is an obligation, if the only factors considered are the life of the guilty aggressor and the life of the innocent person who is a.s.sailed; for the life of the innocent should not be sacrificed for the guilty, and charity indicates that the first duty of the person attacked is to himself. (b) It is an obligation, if, on account of circ.u.mstances, the person attacked owes it to others to preserve his life--for example, if he is the father of a dependent family, or a public official whose life is very necessary for the welfare of the community, or whose office it is to resist those who menace public security. This is true from the viewpoint of society also, for the world needs the good men it has, while there are too many wicked men already.

1837. Sometimes self-defense is not obligatory. (a) Thus, it is merely optional, when no duty to others commands self-defense and a divine counsel invites one to omit it (see 1169). Hence, if the a.s.sailant is certainly in mortal sin, while the person a.s.sailed is certainly in the state of grace, it would be very commendable to die rather than kill the a.s.sailant, in order to grant him time for repentance. But a case of this kind is rather theoretical than practical, for how could one be sure that the a.s.sailant would profit by the opportunity allowed him of doing penance? At any rate, the sacrifice is optional, for the aggressor is either formally unjust, and hence not in extreme spiritual need, or only materially unjust, and it will be uncertain whether he is in spiritual need or whether, if he is in such need, the respite will be used by him (see 1165 sqq.). (b) Self-defense is unlawful according to some, if the life of the a.s.sailant is necessary for the common good, and the life of the person a.s.sailed is not necessary. But this would be a very rare case.

1838. Defense of Neighbor's Life.--The principles on defense of one's own life against an unjust aggressor, even at cost of the latter's life, may be applied to the life of an innocent third party.

(a) Thus, it is necessary to defend the innocent person, even if the aggressor has to be killed, when one is bound to give this protection by natural duty (e.g., because the innocent person is one's child or father and the aggressor is not a relative), or by contract (e.g., because one is a hired bodyguard or policeman).

(b) It is lawful to defend the innocent person, even if the aggressor has to be killed, and even though there is no duty of nature or contract to give this protection (Exod., ii, 12). But it is disputed whether it is also necessary to do this. The affirmative opinion calls attention to the extreme bodily need of the innocent party, the negative to the extreme spiritual need of the aggressor. It is not necessary to risk one's life in order to protect the life of the innocent party, unless the public safety is in peril, or one has undertaken this obligation (see 1169).

1839. A private individual may defend life at the cost of the life of an unjust aggressor, because he is obliged or permitted to protect the life that has more of a claim on him. He may also defend certain other most important goods that belong to him or to his neighbor, even if need be at the cost of the unjust aggressor's life, because the common good is more valuable than the life of the aggressor, and the defense of those goods is bound up with the common good. Thus, if it were not permissible to defend valuable property even to the extent of killing a burglar, criminals would be encouraged, peaceful citizens would be at a disadvantage, and the public security would greatly suffer. Among the goods now spoken of are goods of fortune and goods of body. It is not always obligatory, however, to exercise the right of extreme self-defense (e.g., in case of violation, provided no consent is given the deed).

1840. Defense of Goods of Fortune Against an Unjust Aggressor.--(a) If the attack is equivalent to an attack on life (e.g., the aggressor wishes to take the last loaf from a starving man or the plank from a drowning man), or if it seems to be an attack on life (e.g., the burglar enters a room as if he meant to kill), the killing of the unjust aggressor is not unlawful, as is clear from the previous paragraphs.

(b) If the attack is made on goods of fortune only, but they are of great value and actually possessed, the question is disputed. According to some, killing in this case is unlawful, because life is more valuable than property; but the common opinion is that killing is lawful, both because Scripture excuses the person who kills the nocturnal robber (Exod., xxii. 2), and because the public safety is at stake and therefore justifies extreme measures.

(c) If the attack is made only on goods of fortune, and they are not yet possessed (e.g., a legacy one hopes to obtain) or have only a small value (e.g., one gold piece), killing is unlawful; for there is no proportion between external goods that are only hoped for or that are of minor importance and the life of a human being. Pope Innocent XI condemned the teaching that one may use homicidal defense to protect a coin or the prospect of receiving an office.

1841. Defense of Bodily Purity Against an Unjust Aggressor.--(a) If the attack is equivalent to an attack on life, or seems to be an attack on life, self-defense even by killing is lawful, and hence it may be permissible to kill one who is attempting rape.

(b) If the attack is on bodily purity only, but _per actum consummatum luxuri_, the question is controverted. One opinion is that killing may not be resorted to, for the aggressor cannot take away purity of soul, and the purity of body that he violates is less good than life. The opposite opinion holds that killing may be employed in self-defense, since bodily purity has a higher value than even notable goods of fortune, especially as violation is usually accompanied by spiritual damage or disgrace of family, etc.; and the public interest demands that such outrages be sternly suppressed on account of the strong inclination of many persons to commit them.

(c) If the attack is on bodily purity only, and _per actum non-consummatum luxuri_ (e.g., _per osculum vel amplexum_), killing is not justified, but other means of defense, such as blows or wounds, may be used.

1842. Defense of Bodily Integrity Against an Unjust Aggressor.--(a) If the attack is equivalent to an attack on life (e.g., if the aggressor intends to mutilate or wound, but there is danger that he will kill), defense even with resultant killing is lawful.

(b) If the attack is not equivalent to an attack on life, but is very notable (as when a princ.i.p.al member will be lost or the person horribly disfigured), some authorities claim that defense which would cause the aggressor's death is unlawful, because death is too heavy a price to pay for wounds. But against this it may be argued that the loss of limbs or organs is more serious than the loss of money, and, in some respects, is more damaging than violation. The civil law gives a person the right to protect himself in body and limbs, even by killing the a.s.sailant when absolutely necessary.

(c) If the attack menaces only a minor detriment (e.g., a black eye or b.l.o.o.d.y nose), certainly killing is unjustified. But the person attacked may hit harder and oftener than the a.s.sailant, if he is able, so that the latter may beware of him another time.

1843. Defense of Honor or Reputation.--When honor or reputation is unjustly attacked, the more perfect course is to bear the injury patiently and to pardon the offense, according to the teaching of Christ. But it is not sinful to defend honor and reputation, just as it is not sinful to defend life, limbs and property. How far may one go in defense of honor or reputation against an unjust aggressor?

(a) If the aggression is merely in words (as when the offender calls the other party a liar, or says that he is illegitimate), it is not lawful to use violence, at least such as would cause death; for there are other and less drastic means of defense that suffice (e.g., to answer the allegations, or even to retort the same epithets against the aggressor), and, unless the violence of even justifiable resentment were restrained, the world would be filled with disorder and homicidal violence. Innocent XI and Alexander VII condemned the doctrine that one may kill in order to prevent the spread of calumny.

(b) If the aggression is in deeds (as when the offender slaps the other person or throws mud or rotten eggs at him), it is not lawful to kill; for here also defense can be made in other ways (e.g., by bringing the aggressor before the court for punishment, or, if this cannot be done, by returning slap for slap, etc.). Innocent XI rejected the proposition that it is lawful to kill the aggressor who gave one a blow and then fled. It is only when the aggressor is continuing his attack, and imperilling the innocent party in life or limb, that the latter may repel the extreme force by extreme force.

1844. Killing of the Innocent.--So far we have spoken of the killing of malefactors and unjust aggressors, which under certain conditions is not sinful. The next subject is the killing of the innocent, that is, of those who are neither malefactors nor unjust aggressors worthy of death.

(a) The killing of the innocent by human authority, if it is done directly and intentionally, is always sinful, whether the cause be a private individual or society. But since G.o.d is the Master of life and death, He could command the death of an innocent person, as was done when he bade Abraham to sacrifice his son (Gen., xxii. 12).